#119 


Duke  University  Libraries 

Attorney  genera 
Conf  Pam  12mo  #119 


ATTORNEY  GENERAL'S  REPORT. 


DEPARTMENT  OF  JUSTICE, 
Richmond,  February  26th,   186?. 
To  the  President : 

Sir  : — I  have  the  honor  to  submit  the  following  report 
from  this  Department : 

As  the  present  Congress  is  the  first  which  has  assembled 
under  the  Permanent  Constitution,  it  may  be  useful  to  make 
a  concise  statement  of  the  duties  assigned  to  this  Depart 
ment. 

The  duties  expressly  prescribed  by  law  arc — 

1.  To  prosecute  and  conduct  all  suits  in  the  Supreme 
Court,  in  which  the  Confederate   States  shall  be  concerned. 

2.  To  give  advice  and  opinion  upon  questions  of  law, 
when  required  by  the  President,  or  requested  by  the  Head 
of  a  Department,  touching  a  matter  that  concerns  his  Dc-> 
partment,  on  a  subject  before  it. 

3.  The  organization  of  the  Courts  of  Justice. 

4.  The  supervision  of  the  accounts  of  Marshals,  Clerks, 
and  Officers  of  all  the  Courts  of  the  Confederate  States,  and 
of  all  claims  against  the  Confederate  States. 

o.  The  custody  of  the  Official  Bonds  of  all  Clerks  and 
Marshals  of  the  Confederate  Courts. 

6.  To  provide  suitable  accommodations  for  holding  the 
Courts,  and  to  furnish  the  necessary  books  for  Records  and 
Dockets. 

7.  To  represent  the  Government  in  all  cases  before  the 
Board  of  Commissioners  under  the  Sequestration  Act. 

8.  To  prescribe  uniform  rules  of  proceeding  under  the. 
Sequestration  Act;  but  the  Act  was  so  amended  at  the  Iaat 
session  of  the  Provisional  Congress,  as  to  discharge  the  De- 


pertinent  from  that  duty,  and  to  supersede  the  rules  which 
had  been  prescribed. 

!•.  To  receive  and  file  claims  for  money  against  the  Con- 
federate States,  for  the  proof  and  payment  of  which  no  mode 
is  provided  by  existing  laws:  to  prescribe   the   manner  of 

taking  testimony  to  establish  them;  to  decide  upon  the 
claims  and  report  those  disallowed,  as  well  as  those  allowed, 
to  the  Congress  in  session  at  the  time  of  the  hearing,  or,  if 
not  in  session,  then  to  the  next  session  thereafter. 

10.  The  same  duties  in  relation  to  claims  of  citizens  of 
the  Confederate  States  against  the  United  States,  except 
that  no  decision  or  report  is  to  be  made  until  the  end  of  the 
existing  War. 

11.  The  supervision  of  the  Bureau  of  Printing,  and  the 
hearing  of  appeals  from  the  decision  of  the  Superintendent 
thereof,  in  all  cases  where  he  shall  refuse  to  receive  work,  or 
shall  refuse  to  allow  any  account  rendered. 

12.  The  custody  of  the  laws,  and  their  publication  in  two 
gazettes,  at  the  Capital  of  the  Confederate  States ;  the  se- 
lection of  such  as  are  of  a  public  nature  and  require  early 
publication,  and  their*  insertion  in  one  public  gazette  at  the 
seat  of  government  in  each  State ;  the  preparation  of  in- 
dexes and  marginal  notes  to  all  the  laws  and  treaties,  and 
their  publication  and  binding  in  book  form,  and  the  care 
and  distribution  of  the  volumes,  according  to  the  Act  of 
Congress. 

13.  The  supervision  of  the  Bureau  of  Patents,  the  sign- 
ing of  Patents,  and  the  hearing  of  appeals  from  that  Bu- 
reau. 

Besides  these  statutory  duties,  there  are  others  which  are 
Implied:  as  the  giving  to  the  President,  or  to  Congress,  in- 
formation upon  tacts  within  the  scope  of  the  Department; 
the  making  of  estimates  for  salaries  and  contingent  expenses 
of  the  Department,  including  the  salaries  of  Judges  and 
Attorneys  and  the  expenses  of  Courts  ;  making  estimates 
for  the  expenses  of  printing  for  Congress  and  for  the  seve- 
ral Departments;  making  requisitions  upon  the  Secretary 


of  the  Treasury  for  the  several  amounts  as  tlicy  are  needed 
in  payment;  the  custody  of  applications  for  pardon,  the 
examination  thereof,  and  the  drawing  and  recording  of  par- 
dons when  granted,  &c. 

By  the  Provisional  Constitution,  and  by  the  Act  of  the 
lGth  March,  1861,  each  State  constituted  a  Judicial  Dis- 
trict. Subsequently,  the  Provisional  Constitution  wa 
amended  as  to  declare  that  each  State  shall  constitute  a  Dis- 
trict, until  otherwise  enacted  by  law,  and  to  allow  a  Judge 
to  each  District.  In  accordance  with  the  amendment,  Texas 
and  Virginia  were  each  divided  into  two  Districts,  with  a 
Judge,  Attorney  and  Marshal  for  each  District.  Arkansas 
was  divided  into  two  Districts,  with  one  Judge,  two  Attor- 
neys and  two  Marshals,  Tennessee  constituted  hut  one  Dis- 
trict until  the  passage  of  the  act  of  the  12th  December, 
1861,  by  which  the  State  was  divided  into  three  Districts, 
with  one  Judge,  three  Attorneys  and  three  Marshals.  The 
Courts  in  every  District  were  fully  organized  under  the 
Provisional  Government,  except  in  th  -  of  Missouri 

and  Kentucky,  and  in  the  State  of  Tennessee,  after  the  \<  : 
above  mentioned.  That  Act  ousted  the  Attorney  and  Mar- 
shal, by  omitting  to  assign  cither  to  a  particular  District. 
Nominations  were  subsequently,  made  for  Marshals  and  At- 
torneys of  the  three  Districts  created  by  the  Act,  but  this 
Department  is  not  officially  informed  what  action  was  taken 
upon  them  by  the  Provisional  Congress. 

The  Courts  in  the  Territory  of  Arizona  remain  to  be  or- 
ganized ;  and  the  Courts  also  in  the  Indian  country — but 
the  latter  must  await  the  ratification  of  amendments  made  to 
the  Treaties  by  the  Provisional  Congress.  Under  the  laws 
of  the  United  States,  certain  Indian  Territory,  west  of  the 
State  of  Arkansas,  was  included  in  the  Western  Judicial 
District  of  that  State,  and  by  the  Act  of  the  Provisional 
Congress  of  the  21st  May,  186 1,  the  limits  and  boundaries 
of  that  District  were  declared  to  be  the  same.  It  is  clear, 
that  by  the  secession  of  the  State  of  Arkansas,  and  her  sub- 
sequent admission  as  one  of  the  Confederate  States,  no  ju- 


risdiction  was  given  to  the  Confederate  Government  beyond 
the  limits  of  that  State.  I  know  of  no  ground  upon  which 
to  rest  Buch  extra  territorial  jurisdiction,  except  a  Treaty 
with  the  Indians,  and  my  opinion,  therefore,  is,  that  the 
Act  «>f  the  21st  May  is  inoperative,  so  far  as  the  Indian 
Territory  is  involved,  and  hence  my  conclusion,  that  no 
Court  can  he  organized  over  such  Territory  until  after  the 
ratification  of  the  amendments  to  the  Treaties.  The  neces- 
sary legislation  was  made,  however,  by  the  Provisional  Con- 
gress, so  that  nothing  will  remain  to  be  done,  after  the  rati- 
fication, but  the  appointment  and  qualification  of  the  Officers 
of  Court. 

The  Supreme  Court  remains  to  be  organized,  and  some 
amendment  of  the  laAV,  in  relation  to  appeals  and  writs  of 
error  to  that  Court,  seems  to  be  required.  In  relation  to 
cases  "pending"  in  the  Supreme  Court  of  the  United 
States,  at  the  passage  of  the  Acts  of  the  lGtli  March  and 
21st  May,  1861,  a  motion  to  dismiss  an  appeal  or  writ  of 
'error  is  now  required,  before  such  case  can  be  transferred 
'to  the  Supreme  Court  of  the  Confederate  States.  Such  a 
motion  cannot  now  be  made  by  a  citizen  of  the  Confederate 
States,  and  the  law  docs  not,  therefore,  meet  the  exigency 
of  the  case.  No  express  provision  is  made  for  cases  which 
were  pending  in  the  Supreme  Court  of  the  United  States,  at 
the  date  of  the  secession  of  a  State,  and  which  had  been 
decided  by  that  Court  prior  to  the  Act  of  the  16th  March, 
1861,  nor  for  cases  decided  by  the  Supreme  Court  of  a  State 
prior  to  secession,  nor  for  cases  decided  by  such  Supreme 
Court  subsequent  thereto;  except  the  cases  specified  in  sec- 
tions 45  and  46  of  the  Act.  The  42d  section  of  that  Act 
declares,  by  way  of  proviso,  "  That  appeals  or  writs  of  er- 
ror, in  any  case,  to  the  Supreme  Court  of  this  Confederacy, 
from  existing  judgments  and  decrees,  may  be  taken  under 
the  same  rules  and  regulations  required  by  the  laws  of  the 
United  States,  for  appeals  or  writs  of  error  to  the  Supreme 
Court  of  the  United  States,  existing  at  the  time  the  said 
•judgments    or    decrees    were    rendered."       That     provision 


Would  clearly  and  sufficiently  have  covered  all  cases,  except 
those  which  were  not  in  judgment  or  decree,  but  for  two  reasons  : 
1 .  Because  section  4S  of  the  said  Act  provides  specially  for 
cases  "  now  pending  in  the  Supreme  Court  of  the  United 
States,"  and  subjects  them  to  a  condition  precedent.  2. 
Because  the  prior  part  of  the  section  42  relates  only  to 
judgments  and  decrees  of  the  District  Courts,  and  leaves 
the  proviso  open,  at  least,  to  the  argument  that  it  applies 
only  to  the  judgments  and  decrees  of  such  courts.  I  would 
suggest,  therefore,  that  the  law  be  amended  in  these  several 
particulars. 

The  Act  of  the  31st  July,  1861,  repeals  the  Act  of  the 
Kith  March,  1SG1,  so  far  as  it  directs  the  holding  of  a  Su- 
preme Court  under  the  Provisional  Constitution,  and  dc- 
elares  that  none  shall  be  held  until  the  Court  shall  be  or- 
ganized under  the  Permanent  Constitution.  It  prescribes 
that  "all  writs  of  error  and  appeals  taken  or  prosecuted 
from  the  District  Courts  of  the  Confederate  States  prior  to 
the  organization  of  the  Supreme  Court,  under  the  Perma- 
nent Constitution,  Bhall  lie  made  returnable  on  the  second 
Monday  of  the  first  term  to  be  held  by  the  Supreme  Court 
under  the  Permanent  Constitution."  The  Act  is  prospec- 
tive only  in  its  operation,  and  relates  only  to  appeals  or 
writs  of  error  from  the  District  Courts.  As  the  Supreme 
Court  will,  doubtless,  be  organized  in  a  short  time,  it  seems 
unnccsssary  to  do  more  than  to  provide  for  cases  in  which 
appeals  and  writs  of  error  were  taken  from  the  District 
Courts,  or  from  the  Supreme  Court  of  a  State,  returnable  to 
the  Supreme  Court  of  the  Confederate  States,  which,  under 
the  Act  of  the  16th  March  last,  was  to  have  been  held  on 
the  first  Monday  of  January,  1862.  An  amendment  making 
such  appeals  and  Avrits  of  error  returnable,  by  continuance, 
on  the  second  .Monday  of  the  first  term  of  the  Supreme 
Court,  would  probably  meet  the  whole  difficulty. 

By  the  Act  of  the  21st  May,  1861,  one  time  is  prescribed 
within  which  appeals  or  writs  of  error  niay  be  taken  in  ccr- 


6 

tain  cases,  and  a  different  limitation  made  in  another  class 
of  cases.  It  seems  to  me  that,  in  consideration  of  the  con- 
dition of  the  country,  the  same  time  should  be  allowed  in  all 
-  decided  prior  to  the  organization  of  the  Supreme 
Court,  when  an  appeal  or  a  writ  of  error  is  allowed  at  all, 
and  that  twelve  months  from  the  organisation  of  the  Su- 
preme Court  would  be  a  reasonable  limitation. 

Should  a  Court  of  Claims  be  established,  or  should  the 
Board  of  Commissioners  under  the  Sequestration  Act  be 
continued,  the  Attorney  General  should  be  authorized  to 
employ  an  Attorney,  when  deemed  necessary,  to  attend  to 
the  taking  of  testimony.  The  Department,  as  at  present  or- 
ganized, will  be  found  inadequate  to  the  performance  of  such 
duties,  as  neither  the  Attorney  General  nor  his  Assistant 
can  be  absent  from  the  Department,  and  at  points  remote 
from  the  Seat  of  Government,  without  a  failure  to  discharge 
other  important  duties  required  of  them  by  law. 

Legislation  is  required  as  to  the  fees  of  District  Attor- 
neys, Marshals  and  Clerks  of  the  District  Courts.  Their 
fees  depend,  in  some  cases,  upon  one  law,  and,  in  other 
cases,  upon  another  law;  and  those  of  Marshals  ami  Clerks 
sometimes  upon  the  statute  of  a  State,  and  sometimes  upon 
the  United  States  fee  bill  of  1853,  making  it  not  only  very 
difficult  for  the  officers  to  state  their  accounts  correctly,  but 
requiring  an  examination  in  this  Department,  and  by  the 
Accounting  Officers  of  the  Treasury  Department,  of  the 
laws  of  the  several  States  regulating  such  fees — a-  very  un- 
certain mode,  at  best,  of  arriving  at  just  conclusions.  Be- 
sides, the  compensation  of  Attorneys,  Marshals  and  Clerks 
is,  in  many  cases,  very  unremunerative;  so  much  so  in  regard 
to  Clerks,  that  it  may  be  doubted  whether,  under  the  present 
law,  a  competent  Clerk,  if  one  at  all,  will  be  found  in  six 
months,  in  any  District  Court.  It  is  understood  that  fee 
lulls  were  submitted  to  the  Provisional  Congress,  and  they 
doubtless  remain  now  amongst  the  unfinished  business  of 
the  last  session.     I  think  it  would  be  well,  in  every  instance 


in  which  a  clerk's  fees  do  not  amount  to  five  hundred  dol- 
lars in  a  year,  that  an  amount  should  be  paid  him  out  of  the 
Treasury  to  make  that  sum. 

The  duty  of  the  Attorney  General,  in  supervising  ac- 
counts of  officers  and  courts,  and  of  all  claims  against  the 
Confederate  States,  should  be  more  clearly  defined. 

It  would  be  well,  also,  perhaps,  to  fix  by  law  the  effect  of 
his  opinion,  when  given  according  to  the  requirement  of  the 
Act  of  Congress.  There  was  no  law  declaring  what  should 
be  the  effect,  under  the  Government  of  the  United  States, 
yet  the  general  practice  was  to  follow  it. 

The  salary  of  the  Assistant  Attorney  General  is  less  than 
that  of  any  Assistant  Sectary,  or  of  any  Head  of  a  Bu- 
reau. The  discrimination  should  not  be  made  against  him, 
and  I  recommend  that  his  salary  be  increased.  The  Com- 
missioner of  Patents  made  his  report  in  January  last,  as  re- 
quired by  law,  and  a  copy  accompanies  this  report  for  more 
ready  reference. 

The  Superintendent  of  Public  Printing  has  been  unable 
to  get  the  accounts  necessary  to  the  making  of  his  report, 
but  it  will  be  prepared  and  transmitted  in  the  early  part  of 
the  ensuing  week.     Very  respectfully,  sir, 

Your  obedient  servant, 

THOS.  BRAGG, 

Attorney  Geiicml . 


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